The fate of the City of Tshwane looks set to be determined in court after the DA will probably challenge the Gauteng government’s decision to dissolve the council, place the municipality under administration and hold fresh elections within 90 days.

Premier David Makhura and Co-operative Governance MEC Lebogang Maile said on Thursday, 5 March 2020 that the provincial government had to act to ensure residents still get services after council meetings have repeatedly collapsed, leaving the city without a mayor, mayoral committee and municipal manager.

“The City of Tshwane has been deteriorating rapidly and is evidently on the decline. Residents are suffering while political parties are fighting in the council and the courts,” said Makhura, addressing the media at the Gauteng Legislature in Johannesburg.

The provincial government is invoking section 139(1)(c) of the Constitution, which will not only dissolve the council and see an administrator appointed to run the city, but, read with the Municipal Structures Act, require new elections to be held within 90 days.

The election will be held only about a year before the 2021 elections and will be a crucial test for the DA, which recorded declines in the 2019 general elections and is trying to rebuild after a string of high-profile resignations.

“The current uncertainty, instability, inaction and collapse of service must be confronted fearlessly and stopped in its tracks. The people of Tshwane must come first,” said Makhura.

No political party holds an outright majority in the municipality and the council has been deadlocked since the DA’s relationship with the EFF soured in 2019 and the ANC and EFF have continued to try to remove speaker Katlego Mathebe, who is from the DA.

Tshwane has had no mayor since Stevens Mokgalapa’s last official day in office on 26 February 2020 after he took leave amid a scandal over a leaked recording. DA interim leader John Steenhuisen said this week that discussions with other parties on forming a coalition were ongoing.

Last Thursday, the council was due to decide on whether to approve an extension to acting city manager Augustine Makgata’s contract but the meeting collapsed.

Makhura said the province placed the city under administration due to ongoing mismanagement. He cited a “flagrant disregard” of the Municipal Financial Management Act, unauthorised, irregular, fruitless and wasteful expenditure, and the failure to spend conditional grants from Treasury.

He also mentioned the irregular appointments of senior managers and ongoing challenges in the provision of clean drinking water and refuse collection.

DA Gauteng Provincial Chairperson Mike Moriarty said the ANC was illegally trying to take back a city it lost in the 2016 municipal elections. He and Steenhuisen said the party was consulting its lawyers and would challenge the provincial government’s actions.

“The simple truth is that when the ANC fails to win an election, it resorts to undemocratic and non-procedural means to get back power. What has happened in Tshwane demonstrates this,” said Moriarty.

Steenhuisen said “what they’re attempting to do is a power grab through the back door.”

Maile said one of the reasons for dissolving the Tshwane council was that it failed to respond to a section 139(1)(a) instruction in December 2019 to address governance issues.

Moriarty, however, said Maile ignored a response outlining the city’s efforts in improving the provision of clean drinking water and complying with Treasury regulations on grants and underspending.

“It is clear that the City of Tshwane had the full intention to work with the provincial government but was declined the opportunity for political gain,” said Moriarty.

Makhura denied the DA’s claims that the provincial government wanted to place Tshwane under administration for the ANC’s gain. He said the government had sought legal advice and believed the action was within the law.

“Those threats they are making, they can keep making those threats. We are not going to sit back and watch this happen,” said the premier on the DA’s warning that it might go to court.

Makhura responded that “we are not looking for happiness, especially from the political parties, we are not looking for them to be happy about this”.

“What it means is that all councillors are now out of a job. They are unemployed and this includes ANC councillors,” he added. “They had an opportunity to serve the people and they chose to play games.”

This is only the second time the Gauteng government has dissolved a municipal council, after it acted against the Nokeng tsa Taemane municipality in 2010, but experts agreed Tshwane has serious challenges.

Gerrit van der Waldt, a professor in public governance from North West University who has written on the application of section 139 interventions, said in terms of the law “intervention is currently the best avenue to address the deadlock and disarray in the metro. All the requirements legitimising such an intervention are evident”.

He added “however, listening to the objection of the DA, there may also be a political motive behind the intervention. Hidden agendas will only become evident post facto – after an administrator was appointed and outcomes of the intervention become apparent”.

Makhura and Maile said a qualified administrator would be appointed to address the city’s most pressing concerns within seven days.

Van der Waldt warned that such interventions often only lead to short-term gains, with limited ongoing input from provinces after the administration ended.

Municipal IQ’s Karen Heese said data on Tshwane’s financial performance, including underspending on capital expenditure, liquidity issues, debt, was concerning, although also seen in many other municipalities.

“Without a functional council, the province has a clear argument for intervention. The issue is whether it needed to go as far as council dissolution and if so, will it be applied in other cases?” she asked. DM